Most federal courts hold that a party sharing opinion work product with a testifying expert waives the work-product protection even if the expert claims not to have relied on the opinion work product. These courts usually point to 1993 changes to Fed. R. Civ. P. 26, which require testifying experts to disclose “the data or other information considered by the witness in forming the opinions.” Fed. R. Civ. P. 26(a)(2)(B) (emphasis added). But what about materials that the testifying expert receives from the party and does not read?
As with other areas of the work-product doctrine, federal courts cannot agree. In United States Fidelity & Guaranty Co. v. Braspetro Oil Co., Services, Nos. 97 Civ. 6124 (JGK)(THK), 98 Civ. 3099 (JGK)(THK), 2002 U.S. Dist. LEXIS 111 (S.D.N.Y. Jan. 4, 2002), for instance, the Court pointed to decisions going both ways on this issue. The Court did not have to rule on the matter, because the defendant could not specify what documents their testifying expert had failed to review.
Lawyers who may want to argue that they have not waived the work-product protection by sharing opinion work product with their testifying experts must be prepared to prove what their testifying experts did not review — and will still lose the fight in some courts.